Ryde City Council v Pedras

CATCHWORDS: CRIMINAL LAW - stated case - Companion Animals Act 1998 s 13 - where defendant's dog in a public place not under the effective control of some competent person - where neither the owner of the dog nor another person was present - defendant convicted in the Local Court - conviction set aside on appeal to the District Court - whether District Court judge erred in his interpretation of the section - whether questions of law submitted for determination - whether stated case bad in form and amenable to being struck out - whether case as stated could have additional question added for determination as a question of law "arising on any appeal to the District Court" in accordance with s 5B(1) of the Criminal Appeal Act 1912 - whether form of the Penalty Infringement Notice meant that there was no jurisdiction to determine the case in the District Court on appeal from a magistrate - whether award of costs to defendant to compensate for his time or lost income was erroneous - questions answered - matter remitted to District Court for disposal according to law

Companion Animals Act 1998 Companion Animals Amendment Act 2001 Companion Animals Regulation 2008 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Fines Act 1996 Road Transport (General) Act 2005 Road Transport (General) Regulation 2005

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Castlebar Holding v Riley [2005] NSWCCA 105 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 Creak v Hornsby Shire Council [2007] NSWLEC 480 Director-General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 Director-General of Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234 Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721 He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Madden (1995) 85 A Crim R 367 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000-2001) 50 NSWLR 127; [2000] NSWCCA 367 CASES CITED : Pearce v Cocchiaro [1977] HCA 31; (1977) 137 CLR 600 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Dittmar [1973] 1 NSWLR 722 Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302 Re van der Lubbe (1949) 49 SR (NSW) 309 Roads and Traffic Authority v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547 Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288 Sherras v De Rutzen [1895] 1 QB 918 Stephenson, Blake & Co v Grant, Legros & Co (1917) 86 LJ Ch 439 The Australian Commonwealth Shipping Board v The Federated Seamen's Union of Australia [1925] HCA 3; (1925) 35 CLR 462 University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 Vetter v Lake Macquarie City Council [2001] HCA 12; (2002) 202 CLR 439 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259

PARTIES: Ryde City Council Emidio Pedras

COUNSEL: I J Hemmings (Appellant) E M Pedan (Respondent)

SOLICITORS: J Strati, General Counsel City of Ryde (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2008/12621

GILES JA BUDDIN J HARRISON J

28 September 2009 Ryde City Council v Emidio Pedras Judgment 1 GILES JA: The stated case is set out in the reasons of Harrison J. With the benefit of his Honour's reasons, with which the following assumes familiarity, I can explain with brevity my reasons for its determination. I will refer to Ryde City Council as the prosecutor and to Mr Pedras as the defendant. The form of the stated case 2 The Court raised with the parties the unsatisfactory form of the stated case. 3 This Court's authority pursuant to s 5B of the Criminal Appeal Act 1912 is confined to determining a question or questions of law arising on any appeal to the District Court submitted by a judge of that court, and then to making appropriate orders or giving appropriate directions (including quashing any acquittal, conviction, or sentence of the District Court on the appeal). This Court can not determine any questions of fact or draw factual inferences. The facts on which this Court is to make its determination should be set out, and specific questions of law should be stated for determination. Harrison J has referred to relevant authority. 4 The case stated included some procedural history and some facts as found by the judge. It annexed a number of documents. The documents should not have been annexed. The terms of the penalty infringement notice and the notice of appeal to the District Court were irrelevant. If there were relevant facts appearing from the transcript of the proceedings in the Local Court or the transcript of the proceedings before the judge in the District Court, they should have been included as facts stated, and not left to be gleaned from an annexed transcript (see Madden (1995) 85 A Crim R 367 at 371). The judge's judgment should have been encapsulated so far as relevant in the facts or the questions of law. 5 Question 1 submitted by the judge was not appropriately framed (see Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547 at [15]), but did present for determination a question of law in the construction of s 13(2)(b) of the Companion Animals Act 1998, namely, whether a person not present at the time of the offence was "in charge of the dog at that time" within s 13(2)(b). Question 3 also sufficiently presented a question of law, namely, whether costs could be awarded to the defendant for his personal time. Question 2, however, in my view did not present a question of law for determination by this Court. Rather, it directed this Court's attention to "the facts fully found" (whatever they may have been) and asked whether the defendant had been properly found not guilty of an offence against s 13(2). That was in substance an appeal against the dismissal of the charge brought against the defendant, and no less so because of the introductory words, "Did I err in law in interpreting s 13(2) of the Act … ". 6 The Court having raised the matter, the defendant objected to the form of the stated case. Neither party was in a position to assist the Court. 7 The defendant provided supplementary written submissions on the point; as Harrison J has recorded, the prosecutor did not. It is correct that the directions for further written submissions were confined to submissions on the application next mentioned to strike out the case stated on the ground that the penalty infringement notice was invalid. In declining, for that reason, to deal further with the form of the stated case, when it could have responded to the defendant's submissions or at least asked the Court whether it should respond, the prosecutor compounded its initial inability to provide assistance to the Court, quite apart from considerations of its own interests. 8 The Court is entitled to have had better attention given by the parties to the presentation of the stated case. 9 No application was made to remit the stated case for amendment or supplementation. Despite its unsatisfactory form, the questions of law submitted by the judge in the stated case should be determined so far as can properly be done within the constraints of this Court's authority. The application to strike out the stated case on the ground that the penalty infringement notice was invalid 10 The defendant's written submissions provided prior to the hearing showed little recognition that the stated case procedure under s 5B confined this Court's attention to questions of law arising on the appeal to the District Court and submitted by the judge. One respect in which they went beyond the stated case was the contention that the penalty infringement notice was not validly issued, and that that vitiated the prosecution and in an unspecified way it should so be held on the stated case. That question did not arise in the appeal to the District Court, and was not within the questions of law submitted by the judge. It can not be determined on the stated case. 11 In order to provide a possible vehicle for the contention to be addressed, the Court suggested to the defendant's counsel that she might orally apply to strike out the stated case because of the asserted invalidity. She did so. The parties provided supplementary written submissions. Harrison J has summarised their arguments. 12 In my opinion, the application should be dismissed. I express no view on the validity of the issue of the penalty infringement notice or the effect (if any) of invalidity on the prosecution. It is sufficient that the authority of this Court comes from the submission by the judge of questions of law arising on the appeal to the District Court. Whether the penalty infringement notice was invalidly issued, and if so what effect (if any) that had on the prosecution, could have been raised before the Magistrate, or on the appeal to the District Court, and if raised would have been a matter for decision within the prosecution or the appeal. To this point there is an effective prosecution and appeal, and the judge has submitted the questions of law. In my opinion, it is not open to the defendant to raise by an application to strike out the stated case his contention that the penalty infringement notice was not validly issued. The defendant's application to add a further question of law 13 As described by Harrison J, this application was made in the defendant's supplementary written submissions. It was made without leave. Harrison J has described the arguments. Apart from the absence of leave, the application is without substance. 14 First, this Court can not add a question of law to a stated case; its authority is confined to determination of a question or questions of law submitted by a judge of the District Court. Secondly, such question or questions must arise on the appeal to the District Court, and it is apparent that the validity of the issue of the penalty infringement notice was not raised and so did not arise in the appeal. Thirdly, the question as framed, for the reasons given by Harrison J, was not specific to the present case, and even if it were made specific by regard to the penalty infringement notice issued against the defendant questions of fact could arise which are not the subject of the stated case. Not least, for the prosecutor's argument relying on s 37 of the Fines Act 1996 it would be necessary to know how proceedings were taken against the defendant following an election to have the matter dealt with a court. 15 The application should be dismissed. The construction of s 13(2)(b) 16 Harrison J has set out s 13 of the Companion Animals Act and the respective arguments. 17 There is a contravention of s 13, for the purposes of s 13(2), in the circumstances set out in s 13(1); that is, where a dog is in a public place not under a competent person's effective control in the required manner. Section 13(2) then provides that if the section is contravened there is guilt of an offence, either guilt of the owner of the dog or guilt of another person who was in charge of the dog at the time. These are alternatives, the second being conditional on an additional fact. The owner is guilty if the owner was present at the time of the offence. The other person may be guilty if the owner was not present at the time of the offence. 18 For the second of the alternatives to operate, it is necessary that the owner was not present "at the time of the offence": unhappy wording but meaning at the time the dog was in a public place not under the control of a competent person as stated in s 13(1). It is also necessary that another person was in charge of the dog at the time of the offence. The owner of the dog is guilty of an offence pursuant to s 13(2)(a) unless the dual requirements in s 13(2)(b) are fulfilled, in which event the other person is guilty of an offence pursuant to s 13(2)(b). 19 In the present case the dog was in a public place and was not under the effective control of a competent person in the required manner. The defendant was the owner of the dog, but was not present at the time of the offence. Accordingly, and subject to the defendant's submissions concerning s 12A of the Companion Animals Act next mentioned, whether the defendant was guilty of an offence turned on whether his wife and/or children were in charge of the dog at the time of the offence. 20 Putting the construction issue in accord with the arguments as described by Harrison J, being in charge of the dog at the time of the offence could mean having the general care and control of the dog, or could mean having the particular control of the dog when the dog was in the public place. In my opinion, the latter is the correct construction. The section is concerned with the control of dogs in public places through the exercise of control by the owner of the dog or by some other person who is in charge of the dog. The words "at the time of the offence" and "at that time" make it clear that being in charge is directed to the effective control of the dog which should be exercised but is not being exercised. Being in charge of a dog means more than responsibility for its general care and control; it means having the particular responsibility for its control when the dog is in the public place. 21 Accordingly, the judge was wrong in law to be satisfied that the defendant's wife and/or children were in charge of the dog because the dog had been left in their care and control. 22 Question 1 in the case stated may not in its terms be entirely appropriate to the construction issue. The question can be treated as asking whether the judge erred in law in finding that a person in whose care and control a dog had been left but who was not present when the dog was in a public place was a person in charge of the dog at the time of the contravention of s 13(1). So understood, the question should be answered yes. 23 As I have said, question 2 in the stated case did not present a question of law for determination. It should not be answered. 24 Harrison J has described the defendant's argument to the effect that s 12A of the Companion Animals Act was engaged, not s 13, and that the two were mutually exclusive. I make no comment upon that argument. The facts in the stated case say nothing about how the dog came to be in the public place. (The judge's judgment says nothing about it. The defendant told the Magistrate that the dog dug his way out under the fence, but no clear finding was made even if regard can be had to the transcript of the proceedings before the Magistrate.) Apart from the absence of necessary facts, the engagement of s 12A does not arise on the stated case because question 1 is concerned only with the construction of s 13(2)(b) and question 2 should not be answered. Costs 25 The prosecutor's first submission was that the judge had awarded costs to the defendant without necessary prior regard to whether he was satisfied in one or more of the respects set out in s 70(1) of the Crimes (Appeal and Review) Act 2001. The stated case does not refer to satisfaction. Were it permissible to have regard to the transcript before the judge, it would be seen that satisfaction does not appear to have been raised for his Honour's consideration. However, it would also be seen that the judge made observations critical of the prosecutor, which could have brought the matter within s 70(1)(d) if it had been drawn to his attention. It is unnecessary to consider this submission further, since the prosecutor's second submission should be accepted. 26 The second submission was that costs could not be awarded for the defendant's personal time. I am prepared to act on the common ground that the personal time was the defendant's lost earnings as a taxi driver. The prosecutor relied on Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. The defendant submitted that Cachia v Hanes could be distinguished because the present case was a criminal case, but could not provide a principled basis for a distinction. He also relied on Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288 at 295 and its adoption by the minority in Cachia v Hanes at 423, but the observations in that case can not stand with the view of the majority in Cachia v Hanes. 27 The starting-point must be the judge's power to award costs, although neither party referred to it. The appeal to the District Court was under s 11 of the Crimes (Appeal and Review) Act. By s 28(3), subject to s 70 the District Court could "make such order as to the costs to be paid by either party (including the Crown) as it thinks just". "Costs" was not defined. 28 The reasoning of the majority in Cachia v Hanes applies. "Costs" means money paid or liabilities incurred for professional legal services, and costs orders are intended to reimburse a party for costs incurred, and "are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant" (at 414, per Mason CJ and Brennan, Deane, Dawson and McHugh JJ). Loss of earnings can not be treated as a disbursement (at 417, ibid). 29 Accordingly, question 3 in the stated case should be answered yes. Other orders 30 The prosecutor submitted that this Court should order that the appeal to the District Court be dismissed (but did not seek an order for costs in the District Court). I do not think that should be done. It may be that application can be made in the appeal to put submissions concerning s 12A, or possibly to raise the contention concerning invalid issue of the penalty infringement notice. The defendant should not be shut out from those opportunities. 31 The defendant rather faintly submitted that no order should be made beyond answering the questions, so that the judge's decision would remain. He referred to Roads and Traffic Authority v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 at [52-[55], but there the prosecutor did not seek an order remitting the matter to the District Court. In the present case the prosecutor sought to overturn the judge's decision, and if that is not done by this Court ordering that the appeal be dismissed there should be a remission. 32 In my opinion, consequent upon the answers to questions 1 and 3 the judge's orders should be set aside, and the matter should be remitted to the District Court where the appeal can be re-addressed. 33 The prosecutor has in substance succeeded on the stated case, and there should not be a partial costs order in favour of the defendant reflecting that question 2 is not answered. The prosecutor did not ask for costs of the stated case. Orders 34 I propose the orders: 1. Dismiss the applications to strike out and to add a question to the stated case.

2. Answer the questions in the stated case as follows:

(1) Did I err in law in the construction of s 13(2)(b) in finding that a person not present at the time of the events was " in charge of the dog at that time "?

On the understanding of the question set out in these reasons, yes.

(2) Did I err in law in interpreting s 13(2) of the Act by finding that the Defendant (owner of the dog), on the facts fully found, was not guilty of an offence against s 13(2).

(3) Did I err in law in awarding the Defendant his costs for his personal time (not limited to his reasonable out-of-pocket expenses)?

3. Set aside the orders dismissing the charge and awarding costs to the defendant.

4. Remit the matter to the District Court for disposal in accordance with law. 35 BUDDIN J: I agree with Giles JA. 36 HARRISON J: Section 5B of the Criminal Appeal Act 1912 provides as follows: "5B (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court." 37 The proceedings in this Court are brought pursuant to that provision by way of stated case from the decision of his Honour Armitage DCJ. The stated case is in the following form: " The Proceedings

The proceedings involve a prosecution of Mr Emidio Pedras as owner of a dog for a breach of s 13(2) of the Companion Animals Act 1998.

The Prosecutor issued a Penalty Infringement Notice No. 7660464626 dated 22 August 2007 to the Defendant.

The Defendant elected to have the matter heard by the Local Court. That hearing took place before Magistrate Betts at the Ryde Local Court on 24 July 2008. Betts J [ sic ] convicted the Defendant and fined him $200 plus Court costs of $73.

The Defendant appealed to the District Court pursuant to the Crimes (Appeal and Review) Act 2001 .

I heard that appeal on 16 October 2008. On that day I heard evidence and submissions from each of the parties.

Section 13(1) of the Companion Animals Act requires that a dog that is in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person. I was satisfied that the dog the subject of this Stated Case was, on 22 August 2007, in a public place (being Devlin Street, Ryde) and that it was not under the effective control of a competent person. That is, I was satisfied there was a contravention of s 13(1) of the Companion Animals Act .

I was also satisfied that the Defendant was the owner of the dog for the purposes of the Companion Animals Act .

However, I was satisfied that the owner (the Defendant) was not present at the time of the offence. I was satisfied on the evidence before me that the Defendant was overseas at the time of the offence. Further, I was satisfied that the dog had been left in the care and control of the Defendant's wife and/or children all of whom were over the age of 16.

Lastly, I was satisfied that neither the wife, nor any other person in whose care and control the dog had been left by the Defendant, was present at the public place at the time of the offence.

I decided that as the wife and/or children had the care and control of the dog on the date of the offence, the wife and/or children was a person " in charge of the dog " at the time of the offence for the purposes of s 13(2)(b). As a result, I upheld the Defendant's appeal and dismissed the charge.

I awarded the Defendant costs which involved an amount of $200 for his personal time.

(a) my interpretation of section 13(2) of the Companion Animals Act , and

14. I submit the following questions for determination by the Court of Criminal Appeal:

1. Did I err in law in the construction of s 13(2)(b) in finding that a person not present at the time of the offence was " in charge of the dog at that time "?

2. Did I err in law in interpreting s 13(2) of the Act by finding that the Defendant (owner of the dog), on the facts fully found, was not guilty of an offence against s 13(2)?

3. Did I err in law in awarding the Defendant his costs for his personal time (not limited to his reasonable out of pocket expenses)?

(b) Transcript from the proceedings in the Local Court;

(d) Transcript before me in the District Court including my judgment."

Preliminary issue - is the stated case bad in form? 38 It became apparent at the commencement of the hearing of the appeal in this Court that the form of the stated case was problematic. In Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547, Basten JA said this commencing at [10]: " Form of case stated

[10] The primary basis upon which the prosecutor sought to resist the extension of time was that the case stated had inadequate prospects of success. Before dealing with the substance of the case stated, however, it is necessary to note the constraints under which this Court operates in considering such a statutory appeal. Section 5B provides that a judge of the District Court may submit a "question of law" to this Court "for determination" and empowers this Court to make appropriate orders or give appropriate directions. What it does not do is authorise this Court to determine any questions of fact or to draw factual inferences. This Court is constrained to act on the facts as stated by the District Court: see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby (1956) 100 CLR 146 at 150-151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) and Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58 (Gibbs J, Stephen, Mason, Murphy and Aickin JJ agreeing).

[11] That does not mean that facts other than those expressly identified in the case stated may not be gleaned from the form of the case: see The Queen v Rigby , 100 CLR at 151. However, the Court is not obliged (nor should it be expected) to sift through documents to identify "facts found" which the applicant has not thought it necessary to include in the case requested to be stated. Nor should any different result eventuate because an application for an extension of time is required and is supported by related material. The form of a stated case has long provided difficulties for would-be appellants, and a fertile field for judicial advice: see Dennis v Watt (1942) 59 WN(NSW) 204 (Jordan CJ)." 39 Having regard only to the form of the stated case, the facts relevantly found by his Honour would appear to be limited to the following: (a) The defendant was the owner of the dog for the purposes of the Companion Animals Act 1998.

(b) The defendant was issued with a penalty infringement notice dated 22 August 2007.

(c) The defendant was fined and convicted by Magistrate Betts on 24 July 2008 for a breach of s 13(2) of the Companion Animals Act .

(d) The defendant appealed to the District Court pursuant to the Crimes (Appeal and Review) Act 2001 .

(e) Armitage DCJ heard the appeal on 16 October 2008 and found that:

(i) The defendant's dog was in a public place on 22 August 2007 and was at that time and place not under the effective control of a competent person.

(ii) There was in the circumstances referred to in (i) a contravention of s 13(1) of the Companion Animals Act .

(iii) The defendant was not present at the time of the offence.

(iv) The defendant had left the dog in the care and control of his wife and children who were all aged over 16 years of age which care and control they retained on the date of the offence.

(v) The defendant's wife and children were not present at the public place at the time of the offence.

(vi) The defendant's wife was a person and/or his children were persons in charge of the dog at the time of the offence for the purposes of s 13(2)(b) of the Companion Animals Act .

(f) The defendant's appeal to the District Court of New South Wales was upheld and his conviction was quashed. Defendant's submissions on the (preliminary) application to strike out the stated case as bad in form 40 Accordingly, at the hearing of the appeal in this Court the defendant raised a preliminary issue. The defendant contended that the stated case posed questions that were not properly questions of law. He argued that this Court should not be required to answer questions that are not appropriately formulated: see, for example, R v Dittmar [1973] 1 NSWLR 722 at 728; Castlebar Holding v Riley [2005] NSWCCA 105 at par [41] per Grove J. In Madden (1995) 85 A Crim R 367 at 370, Hunt CJ at CL said this: "The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the district court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act; Re Van der Lubbe (1949) 49 SR 309 at 312 . The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the district court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more that an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated. See, eg, Re Van der Lubbe (at 312); Law Society v Goodwin [1972] 2 NSWLR 462 at 464 " 41 The defendant relied upon the line of authority establishing that this Court ought not to be left "to grope through the case as stated and try to discover for itself what are the specific questions of law involved": Re van der Lubbe (1949) 49 SR (NSW) 309 per Jordan CJ at 312. See also Stephenson, Blake & Co v Grant, Legros & Co (1917) 86 LJ Ch 439. The defendant contended that the questions posed were not specific questions of law. 42 The defendant also submitted that it was undesirable that this Court should either be asked to decide or should itself choose to decide to reformulate questions. This has been stated unequivocally in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000-2001) 50 NSWLR 127; [2000] NSWCCA 367 at [81] per Spigelman CJ where his Honour said, "[i]t is not desirable for this Court to reformulate the question actually posed so that it answers the description 'question of law'." This Court has held that "recitation of a determination by the first instance judge preceded by the interrogatory 'did I err in law' does not create [a question of law]": Castlebar Holding v Riley (supra) at [13]. 43 In Sasterawan v Morris (supra), Basten JA also said this at [15]: "[15] In Robinson v Woolworths Ltd [2005] NSWCCA 426, (2005) 64 NSWLR 612, I suggested that there may be some awkwardness in formulating questions in this way: at [7]-[10], Barr J agreeing at [82]. The questions in the present case seek to ask "Did I err in law", which does not leave open the possibility of other forms of error, but, at the same time, does not identify any specific question of law for determination by this Court. (This form of question seems not uncommon, but is not therefore appropriate: see Garrett v Freeman [2006] NSWCCA 278 at [43].)" 44 The defendant contended that this Court ought not now reformulate the questions for the prosecutor in some (apparently) proper form. The defendant submitted that the stated case should be struck out. It was described by the defendant as in effect an attempt to appeal against the decision of the District Court. Prosecutor's submissions on the (preliminary) application to strike out the stated case as bad in form 45 The prosecutor made no written response to the defendant's further written submissions on this point. Instead, the prosecutor drew attention to the fact that at the conclusion of the hearing in this Court directions were made for the filing and service of such submissions in relation to the limited issue of whether the stated case was vulnerable to being struck out on jurisdictional grounds. Briefly stated, that issue was one that asked, if the penalty notice was so defective that the Local Court had no jurisdiction to hear the matter, was there correspondingly then any jurisdiction for an appeal to the District Court or in turn any jurisdiction to state a case to this Court. According to the prosecutor, the defendant's further written submissions, purportedly formulated pursuant to this Court's grant of leave to file them, strayed beyond that issue. In those circumstances the prosecutor did not deal with the defendant's submissions on the point in its own supplementary written submissions in response. 46 However, in the context of these proceedings it is obvious that the prosecutor opposes the defendant's attempt to deal with the proceedings in this way. Discussion 47 The first two questions are infelicitously drawn. The principal reason for this appears to be because the answers to those questions will not or may not necessarily provide any definitive or meaningful assistance in resolving the competing contentions about how s 13 should be interpreted. The answer to the first question goes only to the issue of whether or not the interpretation apparently adopted by Armitage DCJ was correct. The second question is not a question of law. However, at one important level, this difficulty is less significant than might at first appear. This is because of the flexible regime that is provided by s 5B(3) of the Criminal Appeal Act. It is apparent that at least the limited answer contemplated by the first question submitted for determination may be capable of being given a practical content and operation through this Court's ability to quash any acquittal, conviction or sentence of the District Court "in connection with the determination of a question of law in the circumstances referred to in subsection (2)". 48 With respect to the first question this Court is not being asked, contrary to authority, to determine any questions of fact or to draw factual inferences. The parties' respective contentions about the interpretation and operation of s 13 would appear to me to be capable of consideration and determination by reference only to the facts as found together with such facts other than those expressly identified in the case stated that may be gleaned from its form. I do not apprehend that the form of the stated case either invites or requires this Court to sift through documents to identify the relevant facts, which the applicant has not thought it necessary to include in the case as stated. 49 This Court ought not too readily reject a case stated for determination by adopting an overly technical approach to the issue if practical effect can be afforded to the parties' intentions in framing the case in the way that they have. Even Hunt CJ at CL in Madden (supra) at 370-371, would appear to have contemplated with approval, although not with encouragement, the attachment of the primary judge's reasons to the stated case for the purpose of enabling this Court to have regard to matters outside the stated case where a party wishes to rely upon express or implicit findings made by the judge. The parties in this case have each approached this appeal upon the basis that the reasoning of Armitage DCJ is critical to an assessment of his Honour's interpretation of the statute and to the identification of the error of law for which the prosecutor contends. 50 Nor is this a case like Madden, where the form of all of the questions posed for determination amounted to an assault upon the ultimate determination made by the trial judge in that case. Here only the second question is in that form. All of the questions submitted for determination in Madden commenced with words "[i]t was not open in law for the judge to" find or to draw inferences or to conclude, as the case may be. The Chief Judge concluded, uncontroversially in my respectful opinion, that the questions asked were in a form that was no more than an attempt to exercise a non-existent right of appeal from that determination. By way of contrast, the first question submitted for determination here isolates a question of law for consideration by this Court. There is no dispute about the facts that generate the question. 51 The second question is different. It amounts to an attempt to exercise a non-existent right of appeal from a determination of the District Court. I respectfully adopt the remarks of Giles JA concerning that question. 52 The third question is directed to the legal, not the factual, entitlement to an award of costs other than legal costs and disbursements. That is also a question of law. There is no dispute about the facts that generate that question. 53 I would not in these circumstances strike out the case as stated as one that is bad in form. However, the second question should not be answered. Defendant's submissions on the application to strike out the stated case as bad for want of jurisdiction 54 The defendant sought to argue that the penalty notice issued on 22 August 2007 pursuant to the Fines Act 1996 was invalid for three reasons. First, it did not specify the offence as required by s 20. In this respect the penalty notice did not refer to the Companion Animals Act at all, nor to s 13 upon which the prosecutor relies. Secondly, the penalty notice describes the offence as "dog not under effective control", apparently as a short description of the s 13 offence. The defendant submitted that there was no legislative entitlement to describe an offence in that way and therefore there was no specification as required. Thirdly, the penalty notice should in any event have been issued for an offence under s 12A, rather than s 13(2). In those circumstances the defendant sought to argue that there was no jurisdiction in either the Local Court of New South Wales or the District Court of New South Wales to hear the matter, so that the validity of the stated case fell to be assessed accordingly. 55 The defendant argued that the stated case was hypothetical, rather than a final determination of rights between the parties: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334; University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 10 per Gibbs J. The defendant could not have been legitimately convicted on the penalty notice as issued and therefore the stated case cannot lead to any final or binding legal result or consequence for either of the parties. The defendant submitted that the point of principle was that if a conviction could never have stood, presumably in the sense that it could not have survived challenge on appeal, then it would not be possible for there to be a question of law to be answered by this Court on a stated case in such circumstances. Prosecutor's submissions on the application to strike out the stated case as bad for want of jurisdiction 56 The stated case stems from a contravention of s 13(1) of the Companion Animals Act. The prosecutor alleges that by s 13(2)(a) it is the owner of the dog who is guilty of the offence. Section 92 of that Act provides for the issue of penalty notices in relation to offences prescribed by the Regulations. Section 13(2) is prescribed as a Penalty Notice Offence by cl 34 and Schedule 1 of the Companion Animals Regulation 2008. Other Acts make similar provisions - see, for example, Part 5.3 and s 183 of the Road Transport (General) Act 2005, and cl 169 of the Road Transport (General) Regulation 2005. 57 Once a penalty notice is issued under its cognate legislation, the Fines Act provides for the recovery of those fines. As its long title indicates, it is "an Act relating to fines and their enforcement and to other matters". The scope of that Act and its application to penalty notices is described by s 19 which is in the following terms: " 19 Summary of penalty notice procedure

(1) The following is a summary of the penalty notice procedure under this Part:

(a) A person is alleged to have committed an offence under a statutory provision for which a penalty notice may be issued (see Division 2 and Schedule 1).

(b) A penalty notice is issued under the relevant statutory provision. The notice requires payment of a specified monetary penalty, unless the person alleged to have committed the offence elects to have the matter dealt with by a court (see Division 2 and Schedule 1).

(c) If the penalty is not paid, a penalty reminder notice is issued. The person who is alleged to have committed the offence may elect to have the matter dealt with by a court (see Division 3).

(d) If payment of the specified monetary penalty is not made and the person does not elect to have the matter dealt with by a court, a penalty notice enforcement order may be made against the person (see Division 4). If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by this Act may be taken in the same way as action may be taken for the enforcement of a fine imposed on a person after a court hearing for the offence (see Part 4).

(e) A penalty notice enforcement order may be withdrawn if an error has been made (see Division 4).

(f) A penalty notice enforcement order may, on application, be annulled by the State Debt Recovery Office or, if the Office refuses the application, by the Local Court. If the order is annulled, the alleged offence is to be heard and determined by the Local Court (see Division 5).

(2) This section does not affect the provisions of this Part that it summarises." 58 Pursuant to s 20(2) of the Fines Act, and for the purposes of that Act, a penalty notice is "a notice issued under any of the statutory provisions set out in Schedule 1". That schedule relevantly identifies the Companion Animals Act, s 92. For the purposes of s 20(2) therefore, the reference to the "statutory provision" is a reference to the penalty notice provision in the Companion Animals Act. 59 Section 20(1) of the Fines Act requires that the penalty notice must not merely be a notice issued under the "statutory provisions" but requires specification of the offence. The penalty infringement notice in this case described the offence as "dog not under effective control". The prosecutor contended that this was a sufficient description of the offence and that it was unnecessary to specify the relevant section. In this way, when the penalty notice regime is properly considered, the penalty infringement notice was valid. 60 Section 92 of the Companion Animals Act provides as follows: "92 Penalty notices

(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.

(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

(3) A penalty notice may be served personally or by post.

(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(a) prescribe an offence for the purposes of this section by offence, and

(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and

(c) prescribe different amounts of penalties for different offences or classes of offences.

(7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.

(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences." 61 Section 23A of the Fines Act reflects these provisions: " 23A Person may elect to have matter dealt with by court

(1) A person alleged to have committed or to be guilty of the offence to which a penalty notice relates: (a) has the right to elect to have the matter dealt with by a court instead of under the statutory provision providing for the issue of the penalty notice, and

(i) in the manner specified in that statutory provision, or …" 62 The defendant made an election in the present case. Having done so, s 37 of the Fines Act applied. That section provides as follows: " 37 Matter to proceed

If a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued." 63 In Creak v Hornsby Shire Council [2007] NSWLEC 480, Talbot J said this: "[7] Pursuant to s 37 of the Fines Act 1996, if a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued. Accordingly the only charge before the Magistrate was the charge set out in the Court Attendance Notice, namely an offence under s 125(1) of the EPA Act as a consequence of a contravention of s 76A(1)(b). In its trite law that the Local Court has no jurisdiction to convict a person for a statutory offence with which the person has not been charged ( Ex parte Lovell; Re Buckley (1938) 3 SR (NSW) 153). The defect being a lack of jurisdiction is beyond recall and cannot be cured by the application of s 16(1) and s 16(2) of the Criminal Procedure Act." 64 The prosecutor submitted that in the circumstances of the present case the penalty infringement notice was not defective. It was issued pursuant to s 92 of the Companion Animals Act. If it were required to comply with s 20 of the Fines Act it did so even if it only specified the offence and not the relevant provision creating the offence. In any event, the defendant's election overtook these questions and precluded him from raising them thereafter as the result of the operation of s 37 of the Fines Act. In these circumstances the stated case should not be struck out. Discussion 65 The defendant did not cite authority for the proposition that there was no jurisdiction to state a case to this Court in circumstances where the relevant conviction in a lower court was arguably bad. As a matter of principle it seems to me that it would be an extraordinary result if this Court were to be required, in the context of an application pursuant to s 5B of the Criminal Appeal Act, to determine what amounts to a preliminary issue that one of the protagonists contends has arisen but in circumstances that are somehow outside or beyond the questions stated in the case for consideration. The defendant's own approach to these present proceedings appears to anticipate as much in that he has sought to add what is described as a further question of law for consideration as part of the case as stated. This is referred to and dealt with elsewhere in these reasons. 66 The nature and extent of the scope for this Court to review (to use a neutral term) what transpired in the District Court is patently circumscribed by the terms of s 5B(1) of that Act. The wording of that sub-section is wide enough to encompass the framing of a question of law that was limited in substance to an issue touching the validity of the penalty infringement notice, as in this case. There is not in my opinion any facility beyond the framework of the statement of a case on a question or questions of law that would provide any basis for the defendant's challenge to the jurisdictional validity of the present proceedings on what amounts to an apparently preliminary or threshold basis. Indeed, the very jurisdiction of this Court may be enlivened by a question stated for determination that challenges or calls up for consideration the interpretation or statement of the legal requirements for a valid penalty infringement notice, provided only that it gives rise to a question of law to be submitted to this Court for determination as required by the section. If the parties were not able to draw an appropriately formulated question of law that Armitage DCJ was prepared to submit for determination by this Court, the defendant should not otherwise be able to circumvent the stated case procedure in the way he now seeks to do. 67 Although I have set out the parties' competing contentions on the substantive point of the validity of the penalty infringement notice, and its so called relationship with this Court's jurisdiction to hear the matter, and even notwithstanding that it gives rise to certain questions of potential interest and significance, there is in my opinion no facility for this Court to address the point in the nominated context of the defendant's present application. If these issues are capable of consideration in these proceedings at all, they are only capable of consideration in the event that the defendant's application to add a further question of law to the stated case is successful. This is considered below. Defendant's application to add a further question of law 68 Against the contingency that his applications to strike out the stated case on either basis were unsuccessful, the defendant sought to argue that it should instead in those circumstances include "the following question of law": "What are the criteria for validity of a penalty infringement notice issued for offences under the Companion Animals Act 1998 ?" 69 The defendant submitted that this Court should add this question to those already contained in the stated case for the following reasons. This Court has power to make such an addition pursuant to the general power provided in s 5B(1) that allows the Court to consider any "question of law arising": The Australian Commonwealth Shipping Board v The Federated Seamen's Union of Australia [1925] HCA 3; (1925) 35 CLR 462. The defendant submitted that the validity of the penalty infringement notice satisfied that requirement as a question of law arising because: (a) there is no factual dispute about the notice that issued so that no new facts need to be found;

(b) a precondition to the application of s 13 of the Companion Animals Act is that the notice must be valid and enforceable. Only if the notice is valid can a recipient be in a position to make an election as to whether he or she wanted to contest the offence alleged and the Court would only be able to determine the application of s 13 if the penalty infringement notice issued under the section is valid;

(c) the question was not ever made the subject of any consultation with the defendant and would or may have been included in the stated case if that had occurred. This has caused prejudice to the defendant over which he was given no control;

(d) the prosecutor suffers no corresponding prejudice if the question is included. 70 It can reasonably be anticipated that the defendant's submissions on the jurisdictional point can be transposed as his submissions on whether or not to permit him to raise a further question of law for determination and in turn upon the further question of law if allowed. Prosecutor's response to defendant's application to add a further question of law 71 The prosecutor did not seek to make separate submissions upon the question of whether or not this further so called question of law could or should be added to or included as part of the case as originally submitted by Armitage DCJ to this Court for determination. However, I have taken it to be the prosecutor's position that its submissions upon the jurisdictional point can also be transposed as its submissions on whether or not to permit the defendant to raise a further question of law for determination and in turn upon the further question of law if allowed. Discussion 72 In my opinion the defendant ought not be permitted to add a further (so called) question of law for determination. There are at least two reasons for this. First, the question as framed offends the very principles upon which the defendant sought to rely in his own challenge to the form of the stated case. Even allowing for the fact that the question ought reasonably be confined to a consideration of notices issued with respect to s 13 offences alone, rather than notices issued for offences generally, the question raises matters of fact that are not necessarily apparent from the facts as found or that are available as a matter of necessary implication from the facts as found. The question does not ask, and cannot be assumed to be limited to a question that asks, what are the formal requirements of a valid penalty infringement notice. The question does not foreclose upon the possibility that there are or may be several available formats for a valid penalty infringement notice. The question is not limited to the particular form of the notice in this case. It is not to the point that there is no factual dispute about the notice that issued. It is not necessarily correct to say that new facts do not need to be found when the proposed question is in its present form. I am in doubt that the question is in any event a question of law. 73 Secondly, the question did not arise "on an appeal to the District Court". The effect of s 37 of the Fines Act is in my opinion such that the defendant's election to have the matter dealt with by the Local Court precludes him from raising the validity of the notice as a question of law for determination by this Court. It does not do so in a purely procedural way binding him as the result of his conduct in electing not to challenge the validity of the notice so that he is in effect estopped or prevented from doing so later. It precludes him from doing so because of what happened in the Local Court. The proceedings there were simply not related to or in any way dependent upon the form of the penalty infringement notice. The form or content or validity of the notice were not elements that made up any part of the proceedings or the issues called up for consideration or determination by the learned Magistrate. The defendant's appearance in response to the notice as a matter of practical reality is beyond dispute but was and now remains a matter of no consequence once the matter commenced to be heard and was dealt with by the Local Court. As the section makes clear, from that point on it was as if the notice had not been issued. There is therefore no scope for contending in the present circumstances that the form or validity of the notice issued to the defendant was or became (or indeed could have become) a "question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge" as contemplated by s 5B(1) of the Criminal Appeal Act. No appeal to the District Court would have been available on an issue that was not an issue in the proceedings in the Local Court and it cannot now be made the subject of a question for submission to this Court for determination pursuant to that section. Consideration of the prosecutor's argument on the case as originally stated 74 Section 13 of the Companion Animals Act provides relevantly as follows: " 13 Responsibilities while dog in public place

(1) A dog that is in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person.

(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time-that other person, is guilty of an offence.

(3) Any person (including an authorised officer) can seize a dog that is in a public place in contravention of this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the contravention continues after the owner has been told of the contravention. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog." 75 Section 13(2)(b) has two requirements. First, that the owner is not present. In this case the defendant, who was the owner of the dog, was absent overseas. Secondly, there must be a person, not being the owner, of or over the age of 16 years and that person must be "in charge of the dog at that time". In this case the defendant's wife is said to be that person. 76 According to the prosecutor, an issue of construction arises for consideration, which can be framed as follows: what does it mean to be "in charge of the dog at that time" for the purposes of s 13(2)(b)? The prosecutor argued that to be relevantly "in charge" of a dog connotes something different to being in "effective control". The latter expression is used in s 13(1). The prosecutor contended that this means that a person may be in charge of a dog at any particular time even though the dog is not under effective control. 77 The prosecutor argued that the expression "in charge" could have at least two meanings. It can mean in the care of, as Armitage DCJ appears to have found. Under that interpretation, the dog had been left in the care of the defendant's wife, even though she was not present at the time of the offence. Alternatively, it can mean under the command and/or supervision of a person. It is this interpretation that the prosecutor says is the correct one. 78 The approach taken by Armitage DCJ appears from the terms of a discussion in the transcript between his Honour and the solicitor for the prosecutor in the Court below. After posing the question "who on the evidence was in charge of the dog", his Honour answered the question by saying "he left the dog in the charge of those persons when he went overseas". The prosecutor contends that the posing of the question in those terms itself bespeaks the error that his Honour made. The question is not in whose charge the dog had been left, as per "in the charge of" or "in the care of"; the question is rather who was "in charge of the dog". The prosecutor emphasised that the difference is made clear by the fact that the question of who was in charge of the dog is required to be considered at a particular point in time, being "at that time". 79 The first task of statutory interpretation is simply to read the words: see, for example, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259. The prosecutor emphasised that it must involve an interpretation of all of the words. In the present context that means that s 13(2)(b), which focuses attention on the effective control of a dog in a public place, imposes a liability upon either the owner of the dog or the person in charge of the dog at that time. The prosecutor contended that the contextual importance of this is that it focuses attention upon the second of the meanings (under the command and/or supervision) rather than the first (in the care of). 80 Section 13(3) expands the defined meaning of "owner" for the purposes of the sub-section only. It also focuses upon a person who is, for the "time being", in charge of the dog. The reference to the "time being" is to the same time as that at which the owner is not present, and at which there is another appropriate person in charge. 81 The prosecutor also contended that the scope and purpose of the Act were relevant matters for consideration. It is said to be apparent from a number of provisions in the Act that its purpose was to impose obligations of control upon an owner. Those obligations of control carry with them liability for failure to comply: see, for example s 12 (a dog must wear a collar), s 12A (responsibility for an escaping dog), s 21 (a dog must not be a nuisance), s 25 (liability for injury to person or damage to property) and s 27 (liability for injury to animals). In all such cases the owner is potentially liable. 82 The prosecutor also draws attention to the long title to the Act: "an Act to provide for the identification and registration of companion animals and for the duties and responsibilities of their owners; and for other purposes". This terminology serves to emphasise the overriding obligations on dog owners and evinces a legislative intention to impose liability upon those dog owners who fail to comply. 83 That liability can be avoided for some of the offences in limited circumstances. In the particular circumstances of s 13 it can be avoided if at the time of the relevant event the owner is not present and at that time another person is in charge of the dog. It is consistent with the imposition of liability upon the owner (even in the absence of some fault on the part of the owner) to excuse the owner only if another person was actually present at the time, relevantly in charge and not in effective control. 84 The prosecutor also sought to draw attention to the potential consequences of a dog not being under effective control in a public place with the owner not being present and the person in charge being a person under the age of 16 years. On the approach taken by Armitage DCJ, that set of circumstances would mean that no person bore responsibility for the dog not being under effective control in a public place. The prosecutor submitted that this approach to interpretation would be inconsistent with the scope, object and purpose of the Act. 85 In this context as well the prosecutor pointed to the consequences of an alternative interpretation. The prosecutor's preferred interpretation requires that, if there is no person present in command of and/or supervising the dog at the time of the offence, then the owner is issued with a penalty infringement notice. The prosecutor submitted that such an approach to interpretation is one that assists in the enforcement of s 13 and other similar provisions of the Act. 86 The prosecutor observes that the decision of Armitage DCJ ultimately turned upon his interpretation of the words "not present at the time of the offence" in s 13(2)(b). His Honour held that those words "do not mean not present at the location where the dog was not under effective control" but "mean not present in the general area of the property where the dog was being kept". The prosecutor contended that such an interpretation was erroneous and that such an interpretation and application of s 13 amounted to an error of law: see Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 and Vetter v Lake Macquarie City Council [2001] HCA 12; (2002) 202 CLR 439 at [24] - [27]. 87 Finally the prosecutor submitted that s 13 created an offence of strict liability. Applying the three tests formulated by Gibbs CJ in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, regard must first be had to the words of the statute creating the offence: although the words themselves in s 13 do not contain a clear indication as to whether the presumption of mens rea has been displaced, the prosecutor notes that other offence provisions in the Act do include a requirement for knowledge: see, for example, ss 11(4), 52(2)(b) and 71(4).

88 Secondly, the subject matter with which the Act is concerned: it is apparent from the long title to the Act that it was the intention of Parliament to control companion animals and to impose obligations of control upon their owners. Section 13 deals with an activity which, in the public interest, is prohibited with penalty: see Director-General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 at [88] and Director-General of Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234 commencing at [67]. The section deals with acts that "are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty": He Kaw Teh v The Queen (supra) at 530 referring to Sherras v De Rutzen [1895] 1 QB 918 at 922. 89 Thirdly, whether putting the defendant under strict liability will assist in the enforcement of the particular statutory provision. 90 The prosecutor submitted that in the circumstances it is entirely consistent with the scope, object and purpose of the Act to impose strict liability upon the owner of a companion animal if it is in a public place, not under effective control, where there is no person of or above the age of 16 in charge of the animal at the time. 91 Section 70 of the Crimes (Appeal and Review) Act imposes a limit on costs that may be awarded against a public prosecutor. That section provides relevantly as follows: " 70 Limit on costs awarded against public prosecutor

(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter:

(i) that the prosecutor was or ought reasonably to have been aware of, and

(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant." 92 The prosecutor contended that Armitage DCJ gave no consideration to that section. He awarded $200 to the defendant, who was unrepresented, "for his personal time". It is accepted that this related to loss of income as a taxi driver as opposed to reasonable out of pocket expenses: see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. 93 The prosecutor contended that his Honour erred in law in so doing. Consideration of the defendant's argument on the case as originally stated 94 The defendant's submissions were as follows. Regard must be had to the object and purpose of the Act, which was to ensure the "effective and responsible care and management of companion animals": s 3A. Consistently with that purpose, the Act imposes unambiguously different requirements and liabilities upon "owners" depending upon the context in which the dog is encountered and the "danger" or nuisance to the public created. For example, dangerous dogs are treated differently to others. 95 The defendant argued that s 13 does not apply where a dog has escaped from private premises because s 12A covered the field in such cases. The Act creates separate responsibilities where the dog is kept at private premises (s 12A) and where it is taken or accompanied to a public place (s 13). In this legislative context the defendant argued that s 13 only applied where a person has decided to take a dog to a public place. The liability under that section depends upon a failure to "effectively control" the dog in the public place by keeping hold upon the dog's leash or by some equivalent means. Therefore, the defendant was not in the circumstances of this case liable for an infringement of s 13. 96 Because the Act provides that certain behaviour renders an owner of a dog (or some other relevant person) liable for an offence, the language that is used for this purpose must clearly state the intention of Parliament before such a conclusion will be reached. As Stephen J said in Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721 at 729, "a construction of a statute which interferes with the legal rights of the subject to a lesser extent and produces the less hardship is to be preferred to another, having the opposite effect". The Act must be considered as a whole. Statutory interpretation requires the Court to have regard to the context of the legislation in the first instance and not merely after some kind of ambiguity is established: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. 97 The defendant contended that s 12A is engaged when a dog "escapes" from a particular property and that it covered the field in that context. Section 13 is directed towards the conduct of a person in a public place. It was submitted that the language of the Act made that clear because for a person to be liable for a breach of s 13 the person must have taken the dog to a public place. The issue is whether the "control" being exercised in the public place is effective. The respective penalties for breaches of s 12A and s 13 indicate varying degrees of culpability. 98 It was also the defendant's submission that s 13 requires a person to have chosen to take a dog to a public place. If that has not occurred then the section does not apply. Section 13(1) also requires the person to be holding the dog's leash in the public place. This is said to emphasise the notion that the section envisages a person being present in a public place and either holding the leash or not holding the leash. 99 Section 13(2)(b) provides "if the owner is not present". The defendant argued that the owner can only be liable if present and that a liability under s 13(2)(a) only arises if the owner is present. For any other person to be liable they must also be present. If no person, being either the owner of the dog or another person in charge of the dog, is present in a public place then s 13 does not operate. 100 Section 13 was amended by the Companion Animals Amendment Act 2001 to add s 13(2)(b) so that a person other than the owner could be liable. When introducing the amending bill, the then Minister for Local Government, Regional Development and Rural Affairs said the following: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 April 2001 at 13488: "At the moment under the Act it is a defence for an animal owner to say that someone else, such as a professional dog walker or boarding kennel, was in charge of the animal at the time that an offence occurred. However, there is no corresponding offence provision for that person. The bill provides that the person in charge of the animal may, for certain minor offences only, be guilty of the offence in lieu of the owner. This situation will only occur when the owner is not present, and has left the dog or cat in the charge of another person who is aged 16 or older. These offences include 'dog not under effective control in a public place' …" 101 The Minister indicated that the owner was not liable if someone else was responsible for the dog. The amendments to the Act created a liability for the person who was responsible for the dog at the time of the offence. The defendant argued that the example of the dog walker was a good indication that the section envisaged that someone would be present with the dog when the dog was off the leash in circumstances constituting a breach of s 13. 102 Section 13 requires not only control but also effective control. Effective control is explained by the section to be "an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person". This is to be contrasted with some other form of control such as voice commands. This interpretation is said to draw support from s 13(4), which provides that: "A dog is not considered to be under the effective control of a person if the person has more than four dogs under his or her control". The clear meaning is said in such a case to be that if a person is walking more than four dogs he or she will not be able effectively to control them all. The subsection does not envisage four dogs escaping from premises on their own in a way that would render the owner liable under this section. A person must have taken the dogs to a public place for the section to operate. 103 It was at the heart of the defendant's contentions that s 12A and s 13 had different work to do and applied in different situations. Compare Pearce v Cocchiaro [1977] HCA 31; (1977) 137 CLR 600 at 607 where Gibbs J indicated that it could not be supposed that Parliament would have intended a section of the bankruptcy legislation to be a futility. In the present case, different responsibilities attach, depending upon whether a person keeps a dog at home or takes it to a public place. The defendant submitted that the Act should not be interpreted to impose a liability for a dog's behaviour that cannot be "controlled" by the owner. An owner has the choice of either controlling the dog by taking special precautions securely to house it on private property (s 12A) or controlling it in a public place in the manner specified (s 13). 104 The defendant argued that the Act ought not to be interpreted in a way that rendered individuals liable for offences merely because their dogs escaped into a public place. Section 12A provides that "reasonable precautions" must be taken to ensure that this does not occur. The prosecutor's argument would mean that in the case of an escaped dog being in a public place an owner is potentially liable under s 12A if no reasonable precautions have been taken to prevent escape and under s 13 irrespective of whether or not such precautions were taken. 105 In Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302 at 314 Kirby P said: "It is permissible, in statutory construction, to consider the consequences of alternative suggested interpretations of the statute, and the inconvenient consequences which follow if one construction were to be preferred to another, it being presumed that Parliament's purpose is that legislation will operate conveniently and sensibly". 106 The defendant argued that the prosecutor's proposed interpretation of s 13 would potentially render liable responsible owners whose dogs escape, even if they had taken reasonable precautions to enclose the dog so as to prevent it. This would be neither convenient nor sensible and runs counter to the stated purpose of the Act in s 3A and the defence available to an owner under s 12A. 107 Moreover, the defendant contended that the applicable penalties cast light on this issue. The maximum penalty for s 13 offences (10 penalty units) is greater than the corresponding penalty for s 12A offences (8 penalty units). This suggests that the legislature intended to attach a greater responsibility to a person taking a dog for a walk than for keeping the same dog at home. In other words, a failure to take reasonable precautions to prevent a dog from escaping is not considered to be as serious as failing effectively to control a dog in a public place. 108 As an alternative argument the defendant contended that "in charge of" should be read as meaning or equating to "responsible for". Section 13(2)(b) would then require the owner not to be present and another person to be in charge of the dog before it applied. If, contrary to the defendant's principal submission, s 13 did apply to a case where the dog escaped from a private residence, then the defendant accepts as correct the prosecutor's interpretation that "in charge of" means "in the care of". 109 According to the defendant, the prosecutor has promoted an interpretation of the section that means that as no person was with the defendant's dog at the relevant time, the default position should be that he as the owner is liable for the dog being in a public place off a leash. According to the defendant's submission, this means that the prosecutor is in fact seeking to read the section in a different way for different purposes: the owner can be liable without being present, but another person cannot, even if the owner has left the dog with that other person. 110 The defendant urges that the legislation should be read as imposing criminal liability on the person who had the ability to prevent the acts being penalised. If the owner has entrusted possession of and responsibility for the dog to another adult, then that owner should not be liable when the legislation can be interpreted as imposing liability upon another person who had the opportunity of preventing the breach. This approach also accords with the sentiment expressed in the Second Reading Speech referred to earlier. 111 Upon the construction for which the defendant contends, an owner will not be liable under s 13 if he or she: (a) has taken adequate precautions to ensure that the dog does not escape;

(b) has transferred possession of the dog to a responsible adult; and

(c) is absent at the time the dog escapes into the public place. 112 If anyone is to become liable for a contravention of s 13 in such circumstances it ought to be the responsible adult in whose care the dog has been left. "In charge of" ought to mean that the person responsible for the dog, in the sense of having legal possession, if not immediate physical control and custody of it, is the person liable under s 13. 113 On the issue of costs the defendant sought to distinguish Cachia v Hanes (supra) upon the basis that it was a civil case and that the present case is concerned with a criminal offence. The burden of that decision was that a rule that provided that costs should be at the discretion of the court applied to costs that were confined to money paid or liabilities incurred for professional legal services and did not include compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case. 114 The defendant referred to Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288 at 292 in which "an appropriate indemnity against loss of earnings incurred whether in the preparation of a case or in actual attendance at court" was considered to be appropriate. Discussion 115 It is permissible and convenient to have regard to the reasons of the learned judge in order to provide a context to the questions that are submitted for determination. His Honour dealt with the matter in the following terms: "It is apparent from the evidence before me that on 22 August 2007 the appellant's dog, a Jack Russell, was not under the effective control of any person. It is equally apparent that the appellant as at that date was not in Australia. He had gone to South Africa on 17 or 18 August because his brother was very ill; his brother in fact died on 24 August 2007 and the appellant did not return to Australia until early October 2007.

In my opinion the words "not present at the time of the offence" do not mean not present at the location where the dog was not under effective control. Those words mean not present in the general area of the property where the dog was being kept. Clearly enough this appellant was not present in that sense as he was in South Africa.

Further, it is my opinion that if, as the appellant said in evidence, his wife son and daughter were in charge of the dog in his absence it is they who would have been guilty of an offence if the dog was in a public place not under effective control. Even if I am wrong in my interpretation of the section it seems to me to be grossly unfair of the council to pursue this matter when it must have known, and in fact did know, that the appellant was out of the country, or at least was claiming to be out of the country, at the relevant time." 116 In my opinion his Honour erred in the construction of s 13(2)(b) in finding that a person not present at the time of the offence was "in charge of the dog at that time". In my opinion it is tolerably clear that s 13 contemplates that the dog in question will be accompanied by "some competent person" before the offence can be committed. The section is directed to regulating the behaviour of dogs in a public place by reference to the responsibilities of the person who is with the dog at the time. The competent person may be the owner or it may be some person who is in the position of the owner at that time. The offence contemplated by the section is the failure by the person then present, either the owner or some competent person, to keep the dog under effective control. This follows from the words "if the owner [of the dog] is not present at the time of the offence and" etc. Either the owner is present or some other person in charge of the dog at that time is present. The notion of some person who is not then present keeping the dog under effective control "by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person" is simply meaningless if any other approach is taken. The short description of the section as dealing with "responsibilities while dog in public place" is accurately reflective of the terms of the section. It is directed to the imposition of responsibility upon those who accompany a dog while in a public place, not to responsibility for a dog that happens to be in a public place unaccompanied. The words "in charge of the dog at that time" are intended to convey the meaning that some person other than the owner may be liable for failing to keep the dog under effective control if that responsibility cannot be ascribed to or directed at the owner if the owner is not present. The section imposes a liability for behaviour while a person is or should be keeping a dog under effective control. It is that behaviour at that time and in that place that is the subject of the sanction.

117 I am also attracted to the proposition that if the prosecutor's arguments were accepted, s 12A would either have no work to do or the defence for which it provides would be capable of circumvention. Section 12A provides that the owner of a dog must take all reasonable precautions to prevent it from escaping from the property on which it is being kept. In circumstances where a dog escaped from premises despite reasonable precautions having been taken by the owner to prevent it, the owner would, on the prosecutor's analysis, still be potentially liable under s 13, even if not present at the time. 118 It cannot in my opinion have been the intention of the legislature to create or to impose a liability upon an owner under s 13, whose dog is found to be unaccompanied in a public place, if that owner would have been able to demonstrate that the dog had not been taken to the public place and that reasonable precautions had been taken to prevent the dog's escape so as to amount to a defence to an alleged contravention of s 12A. The sections are directed to different situations. If it were otherwise a defendant could be exposed to prosecution for the same activity rendering him or her potentially liable to conviction for an offence that was defensible in one case but indefensible in the other and where the availability of the defence would in effect be at the whim of the complainant. In such circumstances the same set of facts could lead to conflicting and contradictory results. This conflict cannot be reconciled unless s 13 is interpreted to apply only in those cases where the owner or the person in charge has taken the dog in question to the public place and is not exercising effective control in one or other of the prescribed ways. 119 It is no answer to this conclusion to contend that it may produce a result in some circumstances that no person may be liable for a dog being in a public place that is not under the effective control of some competent person if neither the owner nor some other competent person is present. In my opinion, that is the natural result of the words of a section that is directed to the enforced modification of behaviour of the person present at the time when the dog is in the public place and under whose effective control the dog should then be. 120 The second question that is asked is not a question of law and should not be answered. 121 The issue of whether or not the section imposes a strict liability is beside the point and does not arise for consideration. It may be that s 13 is an offence of strict liability so that proof of mens rea is not required. However, for present purposes the inquiry is directed toward discerning who may be liable for a contravention of s 13, not what may be the mental elements of the offence. The very terms of the section contemplate the imposition of liability upon someone other than the owner of the dog in certain circumstances. The real question includes an issue of whether or not there is a default provision in the section rendering the owner liable if no other candidate is available. That has nothing to do with strict liability per se. No issue of whether the section does or does not impose strict liability on the owner of a dog arises for consideration in answer to the questions submitted for determination. 122 Finally, on the question of costs, the majority in Cachia v Hanes (supra) at [24] said this: "[24] We should add that the English legislation and rule represent a straightforward approach to the problem, in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement ((19) See Kerridge v. Foley, unreported, Supreme Court of New South Wales in Equity, 19 August 1970; Secretary, Department of Foreign Affairs and Trade v. Boswell [1992] FCA 629; (1992) 111 ALR 553; cf. Petrunic v. Barnes (1989) VR 927; Australian Blue Metal v. Hughes (1970) 2 NSWR 119.). Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness's fees." 123 I would not accept that anything said in that case was confined to civil cases or that it did not apply to the present case. No authority is cited for such a proposition. If the principle applies to the present case then the award of costs to the defendant as compensation for his time or lost income was erroneous. Conclusion 124 Accordingly, I would answer the questions as follows:

1. Did I err in law in the construction of s 13(2)(b) in finding that a person not present at the time of the offence was " in charge of the dog at that time "?

2. Did I err in law in interpreting s 13(2) of the Act by finding that the Defendant (owner of the dog), on the facts fully found, was not guilty of an offence against s 13(2)?

3. Did I err in law in awarding the Defendant his costs for his personal time (not limited to his reasonable out of pocket expenses)?

Yes. 125 It will be apparent that I have come to a view about the construction of s 13 that differs from the view of Giles JA and Buddin J. However, in terms of the disposition of the proceedings in this Court, I agree with the orders that Giles JA proposes.

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